The legitimacy of the US Supreme Court is at stake

The US Senate is in the process of examining Donald Trump’s first nominee to the Supreme Court, Neil Gorsuch. His confirmation hearings are forcing the Democrats into a tricky decision: still smarting from the Republicans’ refusal to even consider similar hearings for Barack Obama’s 2016 nominee, Judge Merrick Garland, they have the votes to block Gorsuch’s appointment to the court. The question is whether they should.

Democrats have every right to be angry about the way Senate Republicans treated Garland, arguing that because a new president was soon to take office Obama had no mandate to nominate another justice, even though the Constitution imposes no such limit. Clearly, the Republicans’ imperative was not to give the American people more of a say in who the next Supreme Court Justice should be, but to make sure Obama could not tip the balance of the court towards a liberal majority that might endure for a generation.

As Texas Senator and then-presidential hopeful Ted Cruz said in March 2016: “We cannot afford to lose the Supreme Court for generations to come.” Senate Majority Leader Mitch McConnell hinted at a similar view: “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction.” But tempted as Democrats might be to respond in kind and block Gorsuch’s appointment, they shouldn’t – not least because the case against him, even by their standards, is far from strong.

Democrats and political liberals have all manner of reasons to be wary of Gorsuch. His judicial record suggests he is reliably conservative on issues including religious freedom, the death penalty, and business regulation. He has written in opposition to assisted suicide and euthanasia laws, emphasising the “inviolability” of human life, which suggests a tough stance on abortion.

As is to be expected, Gorsuch has been meeting with senators from both parties ever since Trump nominated him on February 1; nothing has so far emerged to suggest he’s unfit to serve on the Supreme Court. So if Democrats block or reject his appointment on the grounds of ideological opposition, they will not only endorse Republican tactics and all but ensure this situation could occur again, but also put the court’s legitimacy in jeopardy.

Playing politics

The Supreme Court is first and foremost a legal institution, but it’s also a political one: its place as one of three equal branches of the American government and its role in interpreting controversial aspects of the Constitution mean it cannot avoid being so. But too often in recent years politicians and commentators have discussed the court in explicitly partisan terms.

The effect has been to imply, and sometimes to overtly state, that the court’s members made decisions as Republicans or Democrats, not as judges whose political and legal worldviews might lead them to personally support one party over another. From here, it’s a very short step to argue, as Cruz and other Republicans did during the 2016 election cycle, that they could not allow the court to be “lost” or “taken over” by a liberal majority.

This is wrong. The court is not a branch to be “captured” by one party or another – and the Senate’s job is not to judge a nominee’s political views, but to assess their ability to perform the role to which they’ve been nominated.

This has too often been forgotten in recent years. Since the 1973 ruling in Roe v Wade that protected, within limits, women’s right to terminate a pregnancy, potential nominees have been judged, in part, on their views on particular hot button issues, particularly abortion, the death penalty, and gun control.

This process arguably reached its nadir in the 1987 hearings on Ronald Reagan’s nomination of Robert Bork to the court. Intellectually capable, Bork was rejected because his politics were considered unacceptably conservative for the court at that time. In 2006, Samuel Alito found his nomination hearings more challenging than John Roberts had just a few months earlier, in part because he was a legal conservative nominated to a seat vacated by Sandra Day O’Connor, considered to be at the court’s ideological centre.

The process has been a gradual one, with both Republicans and Democrats playing their part, but it has been corrosive nonetheless. The consequences for the court itself are coming into view. Whereas it traditionally enjoyed greater public approval than either the president or Congress, the court has seen its approval ratings plummet. A July 2016 Gallup poll showed its public approval rating at 42%, a severe drop since the 1990s.

The more politicised the court becomes, the more its legitimacy is threatened. Its justices are unelected and serve for life, with no power except their institutional role and persuasion to convince the country to abide by their decisions. That means its legitimacy rests not just on the principle of the rule of law, but on the idea that there is some distance between interpreting the law and making political decisions.

If Americans come to believe that politics is the only deciding factor in the court’s decision making, the court’s legitimacy, and so its ability to compel compliance, may be drastically weakened. Should that happen, all Americans will lose, regardless of party affiliation.

And so the stakes of Gorsuch’s hearings could scarcely be higher. Senators of both parties would do well to remember that. For the good of the court as an institution, Democrats in particular need to rigorously and thoroughly vet Gorsuch – and assuming nothing genuinely untoward comes to light, they should support his nomination.

Emma Long does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.